If you are receiving waiver services, or intend to use waiver services, you may be affected by the implementation of the HCBS Final Rule in your state. The settings in which you are supported will be subject to scrutiny to ensure compliance with new regulations.
Results could include:
(1) the closing of a housing, employment or day program
(2) a requirement that you find an alternative program and/or living situation
(3) being forced to find an alternative funding source for your program (other than Medicaid) and/or
(4) changes to the operations or programs in which you participate.
The U.S. government authorized the “Medicaid 1915(c) Home and Community-Based Services (HCBS) Waiver program” in 1981. Prior to this, beneficiaries could only receive comprehensive long-term care in institutional settings. This law allows states flexibility to offer different types of support services to individuals with disabilities in their own home or other settings in the community. States are in charge of creating different waivers to meet the needs of their citizens, the term ‘HCBS waiver’ is the broad term that encompasses all of the different waivers available in states.
In January 2014, the Center for Medicaid Services (CMS) issued new regulations defining HCBS settings, in other words, where waiver recipients can use their supports. The new regulations use outcome-oriented characteristics and define HCBS settings as guided by the consumer’s person-centered service plan (PCP). This is a huge step forward as policy is intended to ensure more individualized supports based on the needs, choices, and experiences of individuals with disabilities.
Every state was charged by CMS with drafting and revising a State Transition Plan (STP) that assessed their state policy and HCBS settings in response to these new regulations. This STP was to describe steps your state would take to comply with these new federal CMS regulations by March 2019. This is the opportunity to open the doors to more quality, person-centered life options, BUT it can also create barriers to certain opportunities! For more information about how these regulations can open or close doors in your state, see the CCC HCBS Policy Brief and its accompanying FAQ.
The Statewide Transition Plan is the document describing how states will assess and remedy their compliance with the new HCBS regulation requirements, and then provide this written description to CMS. The state will also assess individual settings/types of settings to further document their compliance.
States must make a list of settings that are and are not in compliance. Some settings may be labeled as “isolating” or “institutional.” You can give feedback on whether you agree with the results of your state as this list must be available for 30 days of public comment.
Every state is sharing and asking for public comment on their STP draft at different times, and your states public comment may be open right now! Visit the HCBS Advocacy website for information about your state and check it regularly to make sure you do not miss your public comment period.
According to these new federal CMS regulations, your state has an obligation to seek and revise their policy based on public comment – that includes YOUR voice!
Your state MUST release drafts of important changes as proposed by the STP for public comment for AT LEAST 30 days. Additionally, they MUST have another option of collecting public feedback which may include an in-person forum. Once they receive feedback, they are suppose to revise these portions of their STP based on public comment. Sign up for updates regarding public comment at your State Agency website.
Use the CCC Guidance for Implementing State Transition Plans as a resource.
Though the federal regulations regarding HCBS services have already been finalized, stakeholders can provide input into both the process for implementing their state’s STP as well as ensuring that their state follows the guidelines and intent of the outcome-oriented federal regulations established by CMS.
Every state’s STP will be different, but here are some suggestions based on feedback from members of the Coalition for Community Choice:
Generally, you want to make sure your state is not adding further restrictions or regulations beyond the federal requirements for HCBS settings. See this CMS Fact Sheet to learn what the new federal HCBS regulations require: http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Supports/Home-and-Community-Based-Services/Downloads/Requirements-for-Home-and-Community-Settings.pdf
CCC members can request examples of letters other members have submitted. Contact Desiree Kameka, CCC National Coordinator: DKameka@Madisonhouseautism.org
Final CMS 2249-F/2296-F Regulations in Federal Register (Note: the first 70 pages is discussion in response to the rounds of national public comment periods over several years during the development of these new regulations)
CMS HCBS Compliance Toolkit (official guidance) sent to states about the State Transition Plan: https://www.medicaid.gov/medicaid/hcbs/guidance/index.html
HCBS Advocacy website with the list of state by state links and national resources: http://hcbsadvocacy.org/